affirming dismissal of plaintiff Veritext’s constitutional claims against defendant CSR Board, and reversing the dismissal of Veritext’s Sherman Act claim against CSR Board
How later courts described this case
- affirming dismissal of plaintiff Veritext’s constitutional claims against defendant CSR Board, and reversing the dismissal of Veritext’s Sherman Act claim against CSR Board
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VERITEXT CORP. CIVIL ACTION
VERSUS NO. 16-13903 C/W
17-9877
REF: 16-13903
PAUL A. BONIN, ET AL. SECTION: “B”(2)
ORDER
IT IS ORDERED that defendant LCRA’s Motion to Dismiss is
hereby GRANTED. Rec. Doc. 119. Plaintiff Esquire Deposition
Solutions, LLC’s (“Esquire”) claims under the Sherman Antitrust
Act against defendant LCRA were previously dismissed. Rec. Doc.
137, Case No. 16-13903. Plaintiff Veritext and defendant LCRA
assert that Veritext’s claims set forth in its Second Amended
Complaint (Rec. Doc. 117, Case No. 16-13903) are substantially the
same as the dismissed claims asserted by Esquire.1 See Rec. Doc.
1, Case No. 17-9877.
Defendant LCRA states in its current motion to dismiss that
the substance and verbiage of its argument in the current motion
to dismiss (Rec. Doc. 119) “are identical to that contained in the
1 “Veritext filed the Second Amended Complaint to conform to the allegations
in Veritext with those in the Esquire litigation.” See Veritext’s Opposition
Memorandum, Rec. Doc. 122 at 2. “The allegations [in Veritext’s Second
Amended Complaint] are identical to those made by Esquire Deposition
Solutions, L.L.C. (“Esquire”) in a lawsuit (the “Esquire suit”) pending
before this Court and with which this suit is consolidated for discovery
purposes.” Rec. Doc. 119 at 1.” For the same reasons that led to dismissal
of Esquire’s Sherman Act claims, Veritext’s claim in this instance should
also be dismissed.
LCRA’s Supplemental Memorandum in Support of its Motion to
Dismiss.” Rec. Doc. 119-1 at 2 (citing Rec. Doc. 95, Defendant
LCRA’s Supplemental Memorandum in Support of its Motion to
Dismiss). Similarly, plaintiff Veritext’s arguments in opposition
are substantially identical to the arguments asserted by plaintiff
Esquire in their opposition to defendant LCRA’s motion to dismiss,
and assert the same factual representations. See Rec. Doc. 122;
see also Rec. Doc. 96). In example, plaintiff Vertitext states in
its opposition:
The LCRA argues that the allegations are insufficient to
establish that Mr. Gilberti and the court reporter
members of the Board undertook their actions on behalf
of the LCRA. However, these individual defendants were
no ordinary members of the LCRA. In making this argument,
the LCRA quotes incomplete excerpts of Paragraphs 3, 4,
5, 6, 18, 19, 38, and 44, and 51 of the Second Amended
Complaint and ignores the allegations in Paragraphs 20,
40, 52, and Exhibits 1-5. The LCRA, for example, fails
to disclose to the Court that the Second Amended
Complaint alleges that Mr. Gilberti was serving as ‘an
officer and director of the LCRA’ and ‘also the
registered agent for the LCRA’ when he spoke. Id. ¶ 20.
Nor does the LCRA disclose that Mr. Gilberti ‘served as
the principal spokesperson for the LCRA at meetings of
the Board’ (Id.) or that the Second Amended Complaint
alleges that Mr. Gilberti specifically announced that he
was ‘speaking on behalf of the LCRA.’
Rec. Doc. 122 at 11-12.2 Both complaints asserted by each
plaintiff, both motions to dismiss by LCRA, and both
2 Plaintiff Vertitext’s opposition contains several word-for-word recitations
from plaintiff Esquire’s opposition. See Rec. Doc. 96 at 12 (“LCRA argues
that the allegations are insufficient to establish that Mr. Gilberti and the
court reporter members of the Board undertook their actions on behalf of
LCRA. However, these individual defendants were no ordinary members of LCRA.
In making this argument, LCRA quotes incomplete excerpts of Paragraphs 3, 4,
oppositions from each plaintiff, factually and
argumentatively parallel one another, and in some instances
are identical. However, plaintiff Veritext’s opposition does
not contain any reference to claims for unconstitutional
vagueness, as the Fifth Circuit affirmed this Court’s
decision to dismiss those claims in the Veritext litigation.
See Veritext Corp. v. Bonin, 901 F.3d 287 (5th Cir.
2018)(affirming dismissal of plaintiff Veritext’s
constitutional claims against defendant CSR Board, and
reversing the dismissal of Veritext’s Sherman Act claim
against CSR Board). The essence of instant claims involve a
board member’s public speeches and solicitations in open
meetings of the board. Missing from the amended complaint
are the types of concrete activities that defendant board
would have to undertake to arise to the level of liability
foreseen under the Sherman Antitrust Act. See e.g. Regional
Multiple Listing Service of Minnesota, Inc. v. American Home
Realty Network, Inc, 960 F.Supp. 2d 958, 977-981 (D. Minn.
2013); Federal Prescription Service, Inc. v. American
Pharmaceutical Association, 663 F.2d 253, 265-68 (D.C. Cir.
5, 6. 18, 19, 38, and 44, and 51 of the Complaint and ignores the allegations
in Paragraphs 20, 40, 52, and Exhibits 1-5. LCRA, for example, fails to
disclose to the Court that the Complaint alleges that Mr. Gilberti was
serving as ‘an officer and director of the LCRA’ and ‘also the registered
agent for the LCRA’ when he spoke. Id. ¶ 20. Nor does LCRA disclose that Mr.
Gilberti ‘served as the principal spokesperson for the LCRA at meetings of
the Board’ (id.) or that the Complaint alleges that Mr. Gilberti specifically
announced that he was ‘speaking on behalf of the LCRA.’”)
1981). Further, even assuming the LCRA lobbied the board to
enforce state law, such conduct is protected under the Noerr-
Pennington doctrine of immunity. See e.g. Octane Fitness, LLC
v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1757, 188
L.Ed 2d 816 (2014); Razorback Ready Mix Concrete Co., Inc. v.
Weaver, 761 F.2d 484, 487 (8th Cir. 1985) citing California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511-
16, 92 S.Ct. 609, 612-15, 30 L.Ed. 2d 642 (1973); City of
Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 383, 111
S.Ct. 1344, 1356 (1991).
Therefore, consistent with this Court’s Order and Reasons
dated September 26, 2019 at record document 137 and subsequent
Order with reasons at record document 193, all claims by plaintiff
Veritext against defendant LCRA, pursuant to the Sherman Antitrust
Act, are hereby DISMISSED.
New Orleans, Louisiana this 2nd Day of March 2020
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE